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Tucker v. Ryan

United States District Court, Ninth Circuit

November 25, 2013

Milton Lee Tucker, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT AND RECOMMENDATION

LAWRENCE O. ANDERSON, Magistrate Judge.

This matter is before the Court on Petitioner's pro se Amended Petition for Writ of Habeas Corpus (the "Petition"), pursuant to 28 U.S.C. ยง 2254, in which Petitioner challenges his criminal convictions in the Maricopa County Superior Court, State of Arizona, Case No. CR 110385. (Doc. 7) Respondents have filed an Answer to Petition for Writ of Habeas Corpus (the "Answer") and Petitioner has filed a Reply. (Docs. 15, 16) As explained below, the undersigned Magistrate Judge recommends the Petition be denied as untimely.

I. Background

A. Guilty Plea and Sentencing

On December 8, 1980, Petitioner pled guilty to two counts of Armed Robbery, each a Class Two dangerous felony under Arizona law. (Doc. 15, Exh. A[1]) Petitioner was sentenced on December 29, 1980, to seven years in prison for each count, the terms to run concurrently. (Doc. 15, Exh. B) Petitioner did not file a direct appeal to the Arizona Court of Appeals.[2]

B. State Post-Conviction Proceedings

According to portions of the state-court record provided by Respondents, Petitioner filed nothing in the State court challenging his convictions until March 22, 2011. On that day, he filed in the Superior Court a "Motion of Petition for the Court to Take Mandatory Judicial Notice." (Doc. 15, Exh. C) The motion lists two Maricopa County Superior Court case numbers, the one at issue in the instant Petition, CR-110385, and CR-159112. The second case number is the subject of a second habeas petition filed by Petitioner in CV-12-1912-PHX-NVW (LOA), for which a second Report and Recommendation is being issued simultaneously herewith.

On October 11, 2011, Petitioner filed in the Superior Court a document titled "Acceptance of Contract, " which is in the form of a letter to Attorney General Tom Horne. (Doc. 15, Exh. D) On December 6, 2011, Petitioner filed a Petition for Review in the Arizona Court of Appeals. (Doc. 15, Exh. E) The Court of Appeals dismissed the matter on December 9, 2011, because "the trial court ha[d] not entered any final order in post-conviction relief proceedings." (Doc. 15, Exh. F)

On December 15, 2011, the Superior Court issued an order, addressing Petitioner's "Motion of Petition for the Court to Take Mandatory Judicial Notice, " filed on March 22, 2011, and Petitioner's "Acceptance of Contract, " filed on October 11, 2011. (Doc. 15, Exh. G) The order provides a brief procedural history of both Superior Court cases referenced above. ( Id. ) With regard to CR-110385, the case being challenged in the instant Petition, the Superior Court explained that Petitioner pled guilty to two counts of armed robbery in December 1980 and was sentenced to prison. ( Id. ) The court further explained that Petitioner did not file a direct appeal and did not seek post-conviction relief until he filed the "Motion of Petition for the Court to Take Mandatory Judicial Notice, " which the Superior Court construed as a notice of post-conviction relief.[3] ( Id. ) The Superior Court found the notice to be timely because it was the first one filed in this matter and, at the time Petitioner was sentenced, there was no time limit for seeking post-conviction relief. ( Id. ) (citing Moreno v. Gonzalez, 192 Ariz. 131, 135, 962 P.2d 205, 209 (Ariz. 1998)). Consequently, the Superior Court appointed counsel to represent Petitioner and allowed the matter to proceed. ( Id. )

On January 18, 2012, Petitioner filed a Petition for Review in the Arizona Court of Appeals in which he challenged the trial court's dismissal of post-conviction proceedings as to CR-159112. (Doc. 15, Exh. I) Petitioner "reserve[d] the opportunity" to seek review in CR-110385 if it became necessary at a later time. ( Id. ) The Court of Appeals treated the Petition for Review as a Petition for Special Action, at least as to CR-159112, and declined jurisdiction on February 3, 2012. (Doc. 15, Exh. J) As to CR-110385, it appears the Court of Appeals treated the filing as a Petition for Review. (Doc. 15, Exh. K) On August 8, 2013, the Arizona Court of Appeals denied the Petition for Review. (Doc. 17 at 4)

Although the trial court appointed counsel to represent Petitioner in his post-conviction proceedings in CR-110385, Petitioner stated in a letter filed in the trial court that he did not want court-appointed counsel to assist him. (Doc. 15, Exh. L) On February 13, 2012, the attorney appointed to represent Petitioner filed a Notice of Completion of Post Conviction Review by Counsel; Request for 45-Day Extension of Time to Allow Defendant to File Pro Per Petition for Post-Conviction Relief. (Doc. 15, Exh. N) Counsel stated in the Notice of Completion that, based on Petitioner's letter, he did not conduct a review of the record to determine if there were any grounds for post-conviction relief. ( Id. ) Counsel further requested Petitioner be granted an extension of time to file his own post-conviction petition. ( Id. ) The trial court subsequently issued an order on February 28, 2012, granting Petitioner time to file a pro per post-conviction petition and directing counsel to remain on the case in an advisory capacity until the trial court issued a final ruling on Petitioner's post-conviction proceedings. (Doc. 15, Exh. O)

In the meantime, Petitioner filed a Notice to Court on February 21, 2012, which was construed as a pro se petition for post-conviction relief. (Doc. 15, Exhs. P, Q) On March 9, 2012, the State of Arizona filed a Motion to Dismiss Post-Conviction Relief Petition Without Prejudice, in which the State argued Petitioner failed to comply with the applicable rules for post-conviction petitions in the Arizona Rules of Criminal Procedure. (Doc. 15, Exh. R) In a March 15, 2012 minute entry, the trial court granted the State's motion and struck the post-conviction petition. (Doc. 15, Exh. R) The trial court granted Petitioner thirty days to file a revised petition that complied with the applicable rules. ( Id. ) When Petitioner failed to file a revised petition by the deadline, the trial court dismissed the post-conviction proceedings on May 11, 2012. (Doc. 15, Exh. T) There is nothing to indicate Petitioner sought review of the trial court's decision in the Arizona Court of Appeals.

C. Federal Habeas Petition

On December 6, 2012, Petitioner filed his Amended Petition for Writ of Habeas Corpus in this District Court.[4] (Doc. 7) Petitioner raises fifteen grounds for relief in the Petition. In Ground One, Petitioner alleges the Maricopa County Superior Court had no jurisdiction over his case because it failed to prove its jurisdiction in response to Petitioner's jurisdictional challenge. In Ground Two, Petitioner alleges the Superior Court improperly construed his "Motion of Petition for the Court to Take Mandatory Judicial Notice, " filed on March 22, 2011, as a petition for post-conviction relief. In Ground Three, Petitioner alleges the Superior Court defaulted when it failed to address a motion he filed on January 19, 2011, entitled "Motion for Void Judgment and Motion to Dismiss: No Contract." In Ground Four, Petitioner alleges the State statutes used to convict him in this matter did not have enacting clauses. Thus, he contends the Superior Court had no subject matter jurisdiction. In Ground Five, Petitioner alleges the Superior Court Judge who presided over the change-of-plea hearing and sentencing "did not have a valid and lawful oath of office secured by a fidelity bond on file." In Ground Six, Petitioner claims the Superior Court lacked subject matter jurisdiction because there are no original charging documents including an arrest warrant, an information, and a supporting affidavit. In Ground Seven, Petitioner alleges the United State and the State of Arizona are not sovereign. In Ground Eight, Petitioner alleges his identity was "concealed by novation" and an artificial person was named in the case. In Ground Nine, Petitioner alleges the United States and the State of Arizona are bankrupt and cannot participate in court actions. In Ground Ten, Petitioner alleges the statutes used to charge him in this case are copyrighted and not for public use. In Ground Eleven, Petitioner alleges the Superior Court was a commercial tribunal and not a criminal tribunal. In Ground Twelve, Petitioner alleges his criminal sentence in this matter was actually a debt for which he cannot be imprisoned. In Ground Thirteen, Petitioner alleges his sentence ...


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